RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01010
BRANCH OF SERVICE:  Army	BOARD DATE:  20150217
SEPARATION DATE:  20080813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Health Care Specialist) medically separated for a left small finger condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent U3/S1 profile and referred for a Medical Evaluation Board (MEB).  The left small finger condition, characterized as “chronic left pinkie pain with decreased range of motion secondary to tendon and nerve injury” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded high frequency hearing loss (HFHL) left ear; adjustment disorder; and right knee pain for PEB adjudication.  The Informal PEB adjudicated “left (non-dominant) small finger, limitation of motion of” as unfitting, rated 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI requested a Formal PEB, but then withdrew his appeal and was then medically separated.

CI CONTENTION:  “I did not have these issues prior to enlisting.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20080318	VA - ( Same Month as Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left (Non-Dominant) Small Finger, Limitation of Motion	5230	0%	Residuals Status Post Surgical Repair, Left Small Finger…	8516 	20%	20080801	
			Ankylosis, Left Small Finger…	7805-5227	0%	2008080	
HFHL Left Ear	Not Unfitting	Hearing Loss, Left Ear	6100	0%	20080801	
		Tinnitus	6260	10%	20080801	
Right Knee …	Not Unfitting	Right Knee Derangement	5260	10%	20080801	
Adjustment Disorder	Not Compensable, although it may be administratively unfitting	Adjustment Disorder With Anxiety	9413	30%	20080821	
Other x 0 (Not In Scope)	Other x 4	
Combined:  0%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20090127 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:

Left (Non-Dominate) Small Finger Limitation of Motion.  On 15 March 2007, the CI fell from a vehicle onto a sharp piece of metal lacerating his left 5th finger as well as the nerve and tendon.  He was evacuated to his home station and had surgical repair by a hand surgeon on 30 March 2007.  He was then referred to occupational therapy (OT) for rehabilitation.  He did “extremely well” with rehabilitation, but had not regained full movement of the distal (near the nail) finger joint (distal interphalangeal joint, DIPJ).  He had surgery to release scar tissue on 21 September 2007.  He was again referred back to OT for rehabilitation.  Again, improvement was noted, but flexion of the left small finger was reduced compared to the right.  His grip strength was also reduced on the left compared to the (dominant) right side.  The range-of-motion (ROM) values for the final three OT measurements in the record are charted below.  The Board noted that a trend for improvement in ROM was noted in the record following the second surgery.  However, he was thought to have stabilized and not meet retentions standards.  He was issued a permanent U3 profile on 13 December 2007 and referred for MEB.  The narrative summary noted that the scar was well-healed, but that the CI was tender over the finger, more so over the finger bone next to the knuckle (proximal phalanx).  He was noted to have essentially no motion over the proximal interphalangeal joint (PIPJ - between the first and middle finger bone).  He noted decreased grip strength and ability to type.

At the VA Compensation and Pension (C&P) examination performed on 1 August 2008, less than 2 weeks prior to separation, the CI reported motor and sensory loss of the left 5th finger, innervated by a branch of the ulnar nerve.  On examination, the PIPJ was fixed in 30 degrees of flexion and was also noted to have no movement of the DIPJ.  He was numb along the bottom of the 5th finger on the left.  Strength was reduced to 2/5 for that finger.  A second VA C&P, for his feet, just over 11 months after separation, recorded that the CI was working as an EMT on an ambulance and had lost no time from work the prior year and was able to lift gurneys into the ambulance.  He reported pain from his feet, but made no comment on his finger.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Hand (Non-Dominant) 
(Degrees)	Neuromuscular ~ 9 Mo. Pre-Sep	Neuromuscular ~8 Mo. Pre-Sep	Neuromuscular ~7 Mo. Pre-Sep	VA C&P Same Month as Sep	
	Small Finger	Small Finger	Small Finger	Small Finger	
MCP 0-90	0-45	0-70	0-85 (Passive 0-95)	30 Fixed	
PIP 0-100	35-42	26-42	27-42 (Passive 10-95)	30 Fixed	
DIP 0-70	20-30	20-30	25-40 (Passive 20-56)	---	
Comments					
§4.71a Rating	0%	0%	0%	0%	
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the finger at 0% using code 5230 (limitation of motion of the little finger).  The VA rated the finger condition at 20% for a flexor tendon and ulnar digital nerve laceration using the code 8516 (moderate incomplete paralysis of the ulnar nerve), and also at 0% for ankylosis of the left small finger using the dual code 7805-5227 (scars and ankylosis of the little finger), respectively.  The Board noted that the 5230 code used by the PEB captured the disability in evidence.  The VA rated the CI at 20% for an injury to the ulnar nerve, one of the major nerves in the upper extremity.  In this case, the injury was to one branch of the nerve which innervated a single finger.  While a significant injury, it is not at the same level of severity as an injury to the entire ulnar nerve.  The Board also noted that if the little finger had been amputated, a 10% rating is the maximum allowed under the code 5156.  Thus, the 20% rating adjudicated by the VA violated VASRD §4.68 (amputation rule).  The Board then considered the finding of ankylosis (frozen joint) on the VA C&P examination.  All the previous examinations had shown both active and passive motion of all three joints of the little finger.  Both were reduced, but motion was present and had been on multiple previous examinations.  In addition, the CI was working as an EMT after separation.  The action officer opined that this would be difficult if he had a frozen little finger, even on the non-dominant left hand, and yet no mention was made of it on the post-separation VA C&P.  The Board considered the evidence and found no better coding option than the 5230 code used by the PEB.  Under this code, a 0% rating is the highest rating possible.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left little finger condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting hearing loss, right knee, and adjustment disorder conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The fitness determinations were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  The CI had surgery of the right knee over 3 years prior to separation and was then returned to duty and deployed after several temporary profiles.  There were no records in evidence for the right knee the final 2 years of active service.  The CI was also seen for an adjustment disorder in the months leading up to separation regarding his frustration and anger with the PEB process and outcome.  No duty limitations were placed on him.  He had sustained a loss in his high frequency hearing on the left from accession, but met H2 standards.  The final profile was U3L2H2S1.  None of these conditions was implicated in the commander’s statement or judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  In addition, the Board noted that in accordance with DoDI 1332.38 E5.1.3.9.4., an adjustment disorder is not ratable even if unfitting.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the left 5th pinkie finger condition and IAW VASRD §4.71a, the Board, by a majority vote, recommends no change in the PEB adjudication.  In the matter of the contended HFHL, adjustment disorder, and right knee pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150011027 (PD201401010)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA